1 Wednesday, 8 March 2006

2 [Appeal Judgement]

3 [Open session]

4 [The appellant entered court]

5 --- Upon commencing at 9.01 a.m.

6 JUDGE POCAR: I would like to begin by saying good morning to

7 everybody.

8 Mr. Registrar, may you call the case, please.

9 THE REGISTRAR: Good morning, Your Honours. This is case

10 IT-02-60/1-A, the Prosecutor versus Momir Nikolic.

11 JUDGE POCAR: Thank you, Mr. Registrar. I will now ask for the

12 appearances of the parties. First the Defence.

13 MR. LIVINGSTON: John Livingston for Momir Nikolic. Can I just

14 add this. As the Chamber will be aware, Mr. Tansey has lead me throughout

15 this case. Unfortunately, he can't be here this morning because of

16 illness, and he asks me to give his apologies to the Chamber.

17 JUDGE POCAR: Thank you, Mr. Livingston.

18 Now for the Prosecution. Appearances.

19 MR. KREMER: Peter Kremer, Peter McCloskey, and Marie-Ursula Kind

20 appearing for the Prosecution. Our case manager, Lourdes Galicia, is with

21 us.

22 JUDGE POCAR: I thank you.

23 May I ask whether the appellant can hear the proceedings. Is

24 there any problem with interpretation?

25 THE APPELLANT: [Interpretation] No, Your Honour. I can follow the

1 proceedings.

2 JUDGE POCAR: Thank you.

3 THE APPELLANT: [Interpretation] Thank you.

4 JUDGE POCAR: As the registrar announced, the case on our agenda

5 is Prosecutor versus Momir Nikolic. In accordance with the Scheduling

6 Order issued on 2nd March 2006, today the Appeals Chamber will deliver its

7 judgement on sentencing appeal.

8 After having entered into a plea agreement with the Prosecution,

9 Momir Nikolic pleaded guilty to Count 5 on the indictment on 7 May 2003.

10 Count 5 of the indictment, which relates to events which took place in

11 Eastern Bosnia and Herzegovina after the fall of the enclave of Srebrenica

12 in July 1995 reads, I quote: "The crime of persecutions was perpetrated,

13 executed and carried out by and through the following means: (a) the

14 murder of thousands of Bosnian Muslim civilians, including men, women,

15 children, and elderly persons; (b) the cruel and inhumane treatment of

16 Bosnian Muslim civilians, including severe beatings at Potocari and in

17 detention facilities in Bratunac and Zvornik; (c) the terrorising of

18 Bosnian Muslim civilians in Srebrenica and at Potocari; (d) the

19 destruction of personal property and effects belonging to the Bosnian

20 Muslims; and (e) the forcible transfer of Bosnian Muslims from the

21 Srebrenica enclave."

22 The Trial Chamber found that the facts of the plea agreement and

23 the attached statement of facts provided a sufficient factual basis for a

24 finding of guilt. Accordingly, the Trial Chamber entered a conviction

25 against Momir Nikolic for Count 5 on the indictment, namely for the crime

1 of persecutions, a crime against humanity. Under Article 5(H) of the

2 Statute of this Tribunal.

3 In the plea agreement, the parties agreed that the Prosecution

4 would recommend to the Trial Chamber a sentence within the range of 15 to

5 20 years and the Defence would recommend a sentence of 10 years. Finding

6 that it could not accept the sentences recommended by either party, the

7 Trial Chamber sentenced the appellant to 27 years' imprisonment.

8 Mr. Momir Nikolic has appealed against the sentencing judgement

9 issued by Trial Chamber I of this Tribunal on 2 December 2003. The

10 Prosecution has not appealed the sentencing judgement. The hearing on

11 appeal took place on 5 December 2005.

12 Following the practice of the International Tribunal, I will not

13 read out the text of the judgement except for the disposition. Instead, I

14 will summarise the issues on this appeal and the findings of the Appeals

15 Chamber. I emphasise that this summary is not part of the written

16 judgement, which is the only authoritative account of the Appeals Chamber

17 rulings and reasons. Copies of the written judgement will be made

18 available to the parties at the conclusion of the hearing.

19 The appellant initially raised 12 grounds of appeal but has failed

20 to put forward any arguments in his brief substantiating his ninth, tenth,

21 and eleventh grounds of appeal, and furthermore made no reference to these

22 grounds at the appeal hearing. These grounds of appeal are accordingly

23 dismissed.

24 I will briefly address the remaining nine grounds of appeal in

25 turn.

1 Under the first ground of appeal, the appellant submits that the

2 Trial Chamber erred by venturing outside the facts of the guilty plea when

3 assessing the gravity of the offence. The appellant draws the Appeals

4 Chamber's attention to specific paragraphs of the sentencing judgement,

5 concerning the events in Zvornik, the meetings at the Hotel Fontana; and

6 the Trial Chamber's statement of his rank.

7 The Appeals Chamber agrees with the appellant that Trial Chambers

8 are, in principle, limited to the factual basis of the guilty plea, set

9 forth in such documents as the indictment, the plea agreement and a

10 written statement of facts. However, after comparing the facts as stated

11 by the Trial Chamber with the facts acknowledged by the appellant, the

12 Appeals Chamber finds that the Trial Chamber did not err in stating the

13 facts concerning the events in Zvornik or his involvement in the meetings

14 at the Hotel Fontana. Regarding the overstatement of the appellant's

15 rank, the Appeals Chamber finds that, even though the Trial Chamber

16 erroneously stated his rank in the introductory part of the sentencing

17 judgement, the appellant has failed to demonstrate how this influenced the

18 Trial Chamber in its sentencing considerations.

19 The appellant's first ground of appeal, including subgrounds 1A

20 and 1B are accordingly dismissed.

21 In his second and twelfth ground of appeal, the appellant asserts

22 that the Trial Chamber erred when it imposed a sentence of 27 years'

23 imprisonment on him, since this sentence is inconsistent with the

24 sentences in other cases. The appellant draws the Appeals Chamber's

25 attention to the cases of Krstic, Obrenovic, Blagojevic, and Kordic.

1 The Appeals Chamber has previously held that: "A previous

2 decision on sentence may indeed provide guidance if it relates to the same

3 offence and was committed in substantially similar circumstances."

4 However, the Appeals Chamber also reiterates that: "While it does not

5 discount the assistance that may be drawn from previous decisions

6 rendered, it also concludes that this may be limited." The reasons for

7 this limitation is that when comparing a case to the same offence

8 committed in substantially similar circumstances, the Trial Chamber still

9 has an overriding obligation to tailor a penalty to fit the gravity of the

10 crime and the individual circumstances of the accused, which include the

11 consideration of both aggravating and mitigating circumstances.

12 It is in the light of those criteria that the Appeals Chamber has

13 reviewed the appellant's case with the cases of Obrenovic, Krstic,

14 Blagojevic, and Kordic.

15 With respect to the case of Dragan Obrenovic, the Appeals Chamber

16 considers that the cases of Obrenovic and the appellant are comparable

17 with respect to the number and type of crimes, both accused being

18 responsible for persecutions as a crime against humanity in the context of

19 the fall of Srebrenica. However, the Trial Chamber established several

20 differences between the two cases; namely, in relation both to the

21 respective level of participation in the commission of the crime, and to

22 the factors it took into account in mitigation. When the level of

23 participation in the commission of a crime and mitigating factors differ,

24 different penalties are justified. Therefore, the appellant has failed to

25 show that the relationship between his sentence and that of Obrenovic

1 reveals error in the Trial Chamber's sentencing judgement in this case.

2 In relation to Krstic, who received a sentence of 35 years'

3 imprisonment, the Appeals Chamber considers that the crimes committed may,

4 in general, be comparable since both were found guilty for crimes that

5 occurred in relation to the fall of Srebrenica. However, it is necessary

6 to compare the number and type of crimes and also how the individuals

7 participated in the crimes and their individual circumstances. The

8 Appeals Chamber finds that the participation of the appellant compared to

9 that of Radoslav Krstic and their respective mitigating circumstances are

10 not similar. In sum, the appellant has failed to show that the

11 relationship between his sentence and that of Radislav Krstic reveals

12 error in the Trial Chamber's sentencing judgement in his case.

13 With respect to the case of Vidoje Blagojevic, the Appeals Chamber

14 notes that the sentence in the case of Blagojevic is pending appeal and

15 thus has not yet been the object of final consideration. Therefore, the

16 Appeals Chamber cannot engage in any comparison between the sentence of

17 Blagojevic and that of the appellant.

18 With respect to the sentence given to Dario Kordic, the Appeals

19 Chamber finds that, as conceded by the appellant himself, the killings

20 were not on the same scale as those in Srebrenica. As Dario Kordic was

21 not convicted for the same offences as those of the appellant, the Appeals

22 Chamber concludes that the two cases are not comparable.

23 For the foregoing reasons, the Appeals Chamber dismisses the

24 second and twelfth ground of appeal.

25 Under the third ground of appeal, the appellant argues that the

1 Trial Chamber considered his role in the crimes both in the gravity of the

2 offence and again as a separate aggravating circumstance.

3 The Appeals Chamber recalls that factors taken into account as

4 aspects of the gravity of the crime cannot additionally be taken into

5 account as separate aggravating circumstances and vice versa. The Appeals

6 Chamber considers that the Trial Chamber took into account the appellant's

7 active role in the crime in its assessment of the gravity of the offence,

8 and his position of authority and the role he played in the crime as a

9 separate aggravating circumstance. The Appeals Chamber is not satisfied

10 that the appellant's role taken into account by the Trial Chamber when

11 considering the gravity of the offence and his role taken into account as

12 an aggravating factor correspond to different aspects of the role in

13 question. There is no identifiable difference in the facts cited that

14 would lead to such a conclusion; both the paragraph concerning the gravity

15 of the crime and the paragraph concerning the aggravating circumstance

16 address as a general matter the appellant's role in the murder operation.

17 The Appeals Chamber concludes that the Trial Chamber committed a

18 discernible error in taking into account twice in sentencing the role the

19 appellant played in the commission of the crimes. Double-counting the

20 appellant's role in the crimes is impermissible as doing so allows the

21 same factor to detrimentally influence the appellant's sentence twice. As

22 it impacted on the Trial Chamber's determination of the sentence, the

23 Appeals Chamber will take this error into account when revising the

24 appellant's sentence. Accordingly, the appellant's third ground of appeal

25 is upheld.

1 Similar to the foregoing ground of appeal, the appellant alleges

2 in his fourth ground of appeal that the Trial Chamber considered the

3 vulnerability of the victims as a factor contributing both to the gravity

4 of the offence and to an aggravating circumstance. However, in this

5 instance, the Trial Chamber did not take the same factors into account

6 when assessing the gravity of the crime and the aggravating circumstances.

7 In its finding on the gravity of the offence, the Trial Chamber considered

8 the impact of the crimes on the people who survived the horrific events at

9 Srebrenica. In contrast, it considered the position of vulnerability and

10 the helplessness of the victims as an aggravating circumstance. The

11 Appeals Chamber therefore finds that the Trial Chamber did not take into

12 account the same consideration twice and dismisses the fourth ground of

13 appeal.

14 Under his fifth ground of appeal, the appellant claims that the

15 Trial Chamber erred in fact when it relied upon a mistranslation of

16 Defence counsel's closing arguments at trial in weighing the appellant's

17 sentence.

18 The Appeals Chamber acknowledges that the Defence counsel at trial

19 did not say, I quote: "Only 7.000 persons were killed in this campaign,"

20 but he said: "Around 7.000 men were killed." Therefore, the Trial

21 Chamber relied on a falsely translated statement of Defence counsel at

22 trial. The Prosecution argued during the appeal hearing that "The

23 mistranslation is worth considering, particularly since the Trial Chamber

24 was particularly disturbed by the use of the phrase." The Prosecution

25 agreed with the appellant that this translation error "was very

1 unfortunate and may have had an influence on the Trial Chamber's

2 assessment of not only the facts, the admissions, but also the sentence."

3 The Appeals Chamber agrees with the parties' submissions. The

4 Appeals Chamber first notes that the Trial Chamber expressed its stance in

5 very strong words; namely, the Trial Chamber stated that it was shocked to

6 hear the Nikolic defence make this statement. Furthermore, it stated that

7 the use of the term "only" in relation to the number of persons murdered

8 was shameful. Moreover, the above statement of the Trial Chamber was made

9 in the chapter of the sentencing judgement regarding its findings on the

10 gravity of the offence, which the Appeals Chamber has previously

11 emphasised, is the motion important consideration which may be regarded as

12 a litmus test for the appropriate sentence. In light of the position of

13 the statement in the sentencing judgement and the harshness of the words

14 used by the Trial Chamber, the Appeals Chamber concludes that the Trial

15 Chamber took this factor into account to the detriment of the appellant

16 when assessing his sentence. For the foregoing reasons, the Appeals

17 Chamber allows the appellant's fifth ground of appeal.

18 In his sixth ground of appeal, the appellant submits that the

19 Trial Chamber failed to give sufficient credit to the guilty plea as a

20 mitigating circumstance. He first argues that the Trial Chamber had

21 reservations about the value of plea agreements in general.

22 The Appeals Chamber notes that the Trial Chamber addressed its

23 reservation when considering the general question of whether plea

24 agreements were appropriate in cases involving serious violations of

25 international humanitarian law. The Trial Chamber gave no indication that

1 it considered those reservations when determining the effect of the guilty

2 plea on the appellant's sentence. Indeed, the Trial Chamber acknowledged

3 without reservation that the appellant's guilty plea was an important

4 factor in mitigation of the sentence. This argument is accordingly

5 dismissed.

6 Moreover, the appellant argues that the Trial Chamber did not give

7 enough weight to the fact that his guilty plea before the start of the

8 trial saves the resources of the International Tribunal, and that he was

9 the first Bosnian Serb to publicly admit his guilt in relation to the

10 Srebrenica massacre. The Appeals Chamber first finds that it is in

11 accordance with the jurisprudence of this Tribunal to allocate little

12 weight only not fact that the appellant's guilty plea saved International

13 Tribunal resources.

14 In relation to his second argument, the Appeals Chamber finds that

15 the Trial Chamber considered the fact that the appellant was the first

16 Serb officer to acknowledge his guilt in relation to the Srebrenica

17 massacre. Moreover, the Trial Chamber implicitly considered the fact that

18 he was the first Serbian officer to acknowledge the VRS's involvement in

19 the events after the fall of Srebrenica to be significant, since his

20 guilty plea contributed to, inter alia, restoring peace, providing a basis

21 for reconciliation and precluding revisionism.

22 The Appeals Chamber also notes that the Trial Chamber qualified

23 the appellant's guilty plea as significant and as an important factor in

24 mitigation of the sentence. For all the foregoing reasons, the appellant

25 has failed to demonstrate that the Trial Chamber committed a discernible

1 error in the weight it attached to his guilty plea. The appellant's sixth

2 ground of appeal is accordingly dismissed.

3 The appellant submits in his seventh ground of appeal that the

4 Trial Chamber erred in failing to recognise his full cooperation with the

5 Prosecution.

6 The Appeals Chamber finds that the Trial Chamber, when assessing

7 the mitigating circumstance of the accused's cooperation with the

8 Prosecution, should take into account the Prosecution's assessment of this

9 cooperation. Moreover, considering that the Trial Chamber has a general

10 obligation to set out a reasoned opinion pursuant to Article 23 of the

11 Statute, the Appeals Chamber finds that if the Trial Chamber disagrees

12 with the Prosecution's assessment of the accused's cooperation, it has a

13 duty to provide sufficient reasons for not following the Prosecution's

14 assessment.

15 Based on this premise, the Appeals Chamber has found several

16 discernible errors in the Trial Chamber's assessment of Momir Nikolic's

17 cooperation with the Prosecution.

18 The Trial Chamber has found that there were numerous instances

19 where the appellant's testimony had been evasive. However, it refers to

20 one example only. The Appeals Chamber finds that if a Trial Chamber

21 considers a fact to lessen the weight given to a mitigating circumstance,

22 it must be supported in a way so as to ensure that the accused has the

23 possibility to provide arguments in case he seeks to disturb the finding

24 on appeal. Therefore, the Appeals Chamber concludes that the Trial

25 Chamber failed to support its finding of the appellant's numerous

1 instances of evasiveness and therefore failed to provide a reasoned

2 opinion in this respect.

3 The Trial Chamber also erred in taking into account the fact that

4 the appellant has told lies to the Prosecution when confessing to crimes

5 he had not committed. The Appeals Chamber considered that in the specific

6 circumstances of this case, any negative impact or confusion that such

7 false confessions may have caused on the value of his cooperation had been

8 cured. First, it was on the appellant's initiative that he went back to

9 the Prosecution, apologised, and corrected his statement. Second, as

10 acknowledged by the Prosecution, the appellant showed his full willingness

11 to cooperate with the Prosecution by openly admitting to have rendered

12 false confessions. The Trial Chamber did not appear to have taken account

13 for these actions of the appellant in assessing the value of his

14 cooperation. For these reasons, the Appeals Chamber finds that the Trial

15 Chamber committed a discernible error in this regard.

16 Also, it is not clear what facts the Trial Chamber relied upon

17 when coming to the conclusion that the Momir Nikolic testimony in the

18 Blagojevic case was not as detailed as it could have been in certain

19 areas. The Appeals Chamber has scrutinised the appellant's testimony in

20 the Blagojevic case, but it could not find an instance in which the Trial

21 Chamber asked for more details. The Appeals Chamber finds that the Trial

22 Chamber failed to support its finding and in this respect failed to

23 provide a reasoned opinion.

24 The Trial Chamber also did not substantiate its finding that, I

25 quote, "had Nikolic been completely sincere about cooperating, he would

1 have been more open in all aspects of his testimony and been more

2 forthright in his responses before and to the Trial Chamber," and the

3 Appeals Chamber finds again that the Trial Chamber failed to provide a

4 reasoned opinion in this regard.

5 The Appeals Chamber has therefore identified several discernible

6 errors committed by the Trial Chamber when assessing the appellant's

7 cooperation with the Prosecution. The Appeals Chamber considers that

8 these errors led the Trial Chamber to attach insufficient weight to the

9 mitigating circumstances of his cooperation with the Prosecution. The

10 Appeals Chamber will take this into account in revising the appellant's

11 sentence.

12 For the foregoing reasons, the Appeals Chamber allows the

13 appellant's seventh ground of appeal in part.

14 In his eighth ground of appeal, the appellant alleges that the

15 Trial Chamber erred by failing to give him sufficient credit for his

16 expression of remorse.

17 The Trial Chamber decided that it could not afford substantial

18 weight to the appellant's remorse. The appellant challenges the three

19 reasons put forward by the Trial Chamber to justify its decision. Momir

20 Nikolic alleges that, first, the Trial Chamber placed improper weight on

21 the appellant's reasons for entering into a plea agreement and for giving

22 untruthful statements to the Prosecution during the plea negotiations.

23 Second, the Trial Chamber placed improper weight on the timing of the

24 guilty plea. And, third, the mistranslation of the appellant's counsel

25 statement in the closing arguments may have impacted the decision not to

1 give appropriate weight to his remorse.

2 The Appeals Chamber could not find an error by the Trial Chamber.

3 In particular, the Trial Chamber did not err in taking in account Momir

4 Nikolic's reasons for entering a plea agreement and his reasons for giving

5 untruthful statements to the Prosecution. The appellant has failed to put

6 forward any argument why the Trial Chamber should not have taken those

7 reasons into account. When arguing that there were also other reasons,

8 apart from self-interest motives, that played a major part in the

9 appellant's thought process in reaching the plea agreement, the appellant

10 fails to see that the Trial Chamber in fact took those other reasons into

11 account as it expressly cited in the sentencing judgement the appellant's

12 relevant statement at the sentencing hearing. The Appeals Chamber

13 concludes that the appellant has failed to demonstrate that the Trial

14 Chamber gave improper weight to the appellant's reasons for entering into

15 a plea agreement and for providing untruthful statements to the Prosecutor

16 during the plea negotiations.

17 With respect to the timing of the guilty plea, the Appeals Chamber

18 acknowledges that the timing of the appellant's guilty plea cannot be

19 considered by the Trial Chamber as an aggravating circumstance. In this

20 case, the Appeals Chamber considers that the Trial Chamber did not err in

21 referring to the timing of the guilty plea when assessing the weight to

22 accord to appellant's remorse. Rather, the Trial Chamber considered the

23 timing of the appellant's plea as evidence about the extent to which the

24 plea was motivated by remorse, as opposed to self-interest. Where, as

25 here, a Trial Chamber merely considers a plea's timing as evidence about

1 the extent to which it was motivated by remorse, the Trial Chamber does

2 not infringe the accused's rights. The Trial Chamber did not detract from

3 the weight to accord this mitigating factor because the appellant for a

4 time exercised his right to plead not guilty.

5 Regarding the mistranslation of the Defence counsel's statement in

6 his closing arguments at trial, the Appeals Chamber has already addressed

7 this under the fifth ground of appeal.

8 In relation to the eighth ground of appeal, the Appeals Chamber

9 finds that the Trial Chamber did not refer to or consider the

10 mistranslated statement when discussing the weight given to the

11 appellant's remorse.

12 For the foregoing reasons, the Appeals Chamber concludes that the

13 appellant has failed to demonstrate that the Trial Chamber committed a

14 discernible error in the weight it afforded to the mitigating circumstance

15 of remorse. The appellant's eighth ground of appeal is accordingly

16 dismissed.

17 Let me now recall the final conclusions of the Appeals Chamber.

18 The Appeals Chamber has upheld the appellant's third and fifth ground of

19 appeal, as well as his seventh ground of appeal in part, and has dismissed

20 all the other grounds of appeal. The Appeals Chamber stresses that under

21 Rules 72 ter (B) and 72 ter (A) of the Rules which apply to appeals

22 proceedings by virtue of Rule 107 of the Rules, it is not bound by the

23 sentencing range recommended by either party.

24 The Appeals Chamber considers that the errors identified by the

25 Appeals Chamber warrant a reduction of the sentence of seven years' of

1 imprisonment.

2 I shall now read the operative paragraph of the Appeals Chamber

3 judgement.

4 Mr. Nikolic, would you please stand.

5 For the foregoing reasons, the Appeals Chamber, pursuant to

6 Rule -- to Article 25 of the Statute and Rules 117 and 118 of the Rules of

7 Procedure and Evidence; noting the respective written submissions of the

8 parties and the arguments they presented at the hearing of 5 December

9 2005; sitting in open session; allows the appellant's third and fifth

10 ground of appeal, as well as his seventh ground of appeal in part; and

11 dismisses all the other grounds of appeal; revises the sentence; sentences

12 the appellant to 20 years' imprisonment to run as of this day subject to

13 credit being given under Rule 101 C of the Rules for the period the

14 appellant has already spent in detention; orders in accordance with

15 Rule 103(C) and Rule 107 of the Rules that Momir Nikolic is to remain in

16 the custody of the International Tribunal pending the finalisation of

17 arrangements for his transfer to the state in which his sentence will be

18 served.

19 Mr. Nikolic, you may be seated.

20 Mr. Registrar, would you please deliver copies of the judgement to

21 the parties.

22 This concludes our hearing. The Appeals Chamber stands

23 adjourned.

24 --- Whereupon the hearing adjourned

25 at 9.37 a.m.